International Criminal Court – ICC

Below are several excerpts from Kenyan President Uhuru Kenyatta’s speech as well as some video of the intense, perhaps pivotal moment in Africa’s complicated relationship with the International Criminal Court…

We refuse to be carried along in a vehicle that has strayed off-course to the detriment of our sovereignty, security and dignity of Africans.

In the face of a mutating global terrorist threat that is costing us lives and great economic loss, in the midst of playing our part in mediating multiple peace processes in our region, we have had to contend with an ICC pursuing weak and politicized cases…

This is not what Kenya signed up for when we joined the ICC. I highly doubt that those of you that are its members expected this to be the way the court would conduct itself…

“The specter of a government pursuing investigations and prosecutions of the former regime while blatantly ignoring—or worse, covering up—its own crimes and misdeeds will very likely deepen mistrust across the social spectrum and lay the foundation for future conflict.”

Côte d’Ivoire was once a promising model of economic prosperity and stability for West Africa, but in the last decade alone it has fallen prey to two civil wars, untold human misery, and large-scale impunity for perpetrators of human rights violations. The complex problems currently besetting the country are linked to the failure of its leaders to both commit to and successfully foster genuine democratic principles and practices.

The latest manifestation of poor political leadership occurred during the latter part of 2010, when incumbent president Laurent Gbagbo refused to relinquish power following his electoral defeat at the hands of a longtime adversary, Alassane Ouattara. By early December 2010, both men had been sworn in as president in separate, conflicting ceremonies. The stalemate sparked Côte d’Ivoire’s second civil war since 2002, resulting in over 3,000 deaths and the displacement of over a million people before Ouattara finally assumed power in April 2011.

The relative peace that now prevails is tenuous at best, threatened by persistent and deeply rooted political, tribal, and ethnic divisions. The recent discovery of mass graves, mainly located in the western part of the country, has done little to allay fears of renewed violence. The situation is exacerbated by the proliferation of small arms and the desperation caused by widespread poverty.

The UN-backed Muntarbhorn Commission determined that serious violations of human rights and international humanitarian law were committed by both sides during the postelection crisis. A number of important steps have since been taken to foster national reconciliation and ensure that key perpetrators are held accountable. A Truth, Reconciliation, and Dialogue Commission (TRDC) has been established, as has a separate Commission of Inquiry. A newly appointed public prosecutor assumed office in April 2011, and the International Criminal Court (ICC) has been cleared to investigate and prosecute those alleged to have violated international law. Gbagbo, for his part, already sits in The Hague, where he will stand trial before the ICC on four counts of crimes against humanity.

The Obama administration has pledged support to the Ouattara government, hoping to reestablish a normal trade and assistance relationship and provide a sense of stability to a country still reeling from a humanitarian disaster. However, this relationship is premised on Ouattara’s demonstrated commitment to advance national reconciliation, implement measures that decrease ethnic violence, and ensure that human rights violations are impartially investigated.

Unfortunately, the requisite progress on these fronts remains to be seen.

You’re like the surgeon who comes to a patient, the patient dies, and you’re saying, “But it was a great operation! We did a great job!” But the patient died.— Tim Sebastian to International Criminal Court Chief Prosecutor Fatou Bensouda on Conflict Zone

After more than a decade of illiberal folly and imperial impunity, the International Criminal Court’s global media grace period appears to at last be coming to an end.

The sound thrashing Fatou Bensouda receives at the hands of Tim Sebastian for twenty-six unrelenting minutes — embedded for easy access below — should be watched in full by supporters and detractors of the Court alike, but to give you all a quick taste we’ve transcribed the tone-setting first ninety seconds:

Sebastian: Thirteen years of your court’s operation. One billion dollars so far spent. Two convictions. How can anyone say this is worth the money?

Bensouda: Indeed, I would say it is worth the money. It is about the rule of law. it is about..

Sebastian: In two cases.

Bensouda: It is about ensuring there is accountability. It is not really about the number of convictions. It is important of course to have convictions. But what is more important is the impact the Court has had in its infancy.

Sebastian: Okay, but i want to you about the impact it has had. Because [the Court] has stopped none of the global war crimes, the number of which seem to be going up and up. We’ve had Israel/ Palestine, Sudan, Afghanistan, Libya, Syria, Egypt, Ukraine…no deterrent effect whatsoever visible from your Court.

Bensouda: I beg to differ. I think that we should not be judging the court on its performance because atrocities…

While the Obama administration has been more willing to engage with the court than the Bush administration, which was strongly opposed to cooperating, Obama has made no sign that he wants to become a full-blown member of the court. Even if he did, doing so would require 67 votes in the Senate, making it essentially a nonstarter. We rate the claim False.

This seems about right: This U.S. has taken a Do as we say, not as we do approach to the ICC, mostly employing it as a hammer of American foreign policy — via, in the words of the Justice Department, “informational” support for “particular investigations or prosecutions” — with little to no fear of the reverse ever coming to pass.

Of course, this approach speaks volumes about the reputation of the ICC amongst leaders of the both the United States’ two major political parties — specifically that the ICC is in actuality a political institution, not a venue of blind justice, out to cultivate power and reach. These politicians understand that to subject American soldiers, politicians, and civilians to its whims would not only be completely irresponsible, it would be bad for the reelection business.

Even as it condemns the chain email authors as yahoos for believing such manifest nonsense, the PolitiFact authors, self-styled cosmopolitans they are, do offer up a bit of a defense of the ICC trotting University of Michigan law professor Steven R. Ratner out to say the Court’s jurisprudence is “generally on par with U.S. law, with small exceptions such as trial by judges rather than a jury, and looser rules for admission of evidence.”

Those “small exceptions” would no doubt seem much larger to someone in the dock — I wonder how Ratner might change if, say, the state of Alabama began unilaterally employing those standards in its prosecutions? — but there is nevertheless an ongoing effort to cheerlead the ICC into taking on the U.S. even without ratification.

In the new report “No More Excuses: A Roadmap to Justice for CIA Torture,” Human Rights Watch labels the ICC a “potential forum for holding US officials accountable for post-9/11 abuses” and urges the Court to “consider opening a formal investigation into US-related abuses in Afghanistan” if the U.S. government fails to “pursue credible and impartial criminal investigations and prosecutions of detainee abuse allegedly committed by members of the US armed forces in Afghanistan between 2003 and 2008.”

Back in October International Criminal Court Chief Prosecutor Fatou Bensouda submitted a nine page missive to the pre-trial chamber seeking to establish a December 31, 2015 deadline for South Africa to explain its (not-so-cut-and-dried-as-advertised) decision not to arrest Omar al-Bashir during a regional summit last July. The filing sought to rein in South Africa’s domestic wrangling over the issue “out of concern for the potentially open-ended time frame that may result from the need for resolution of the domestic proceedings…and the manner in which the proceedings have been represented in South Africa’s submissions in support of its request for an extension of time.”

The pre-trial chamber, so far as we can tell, simply ignored the request, but it looks as if rather than forcing South Africa to kneel, Bensouda’s attempted power-play may have made the nation more, not less, defiant.

Of course, the International Criminal Court and its backers could issue a one-page book on how to achieve de facto immunity: Be a rich, powerful nation that can expand either the treasury or purview of the Hague or…the client state of a rich, powerful nation that can expand either the treasury or purview of the Hague.

Obviously Jefferson’s critique is of a federal judiciary he worried would overstep its Constitutional bounds. Nevertheless, all of these arguments are more not less pertinent when discussing an aspiring transnational behemoth that seeks to place the entire planet under its uneven and politicized jurisdiction.

1. Judges Are Men, Not Angels, and, Thus, Susceptible to the Temptations of Power

“It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that ‘it is the office of a good judge to enlarge his jurisdiction,’ and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear?” — Autobiography, 1821.

Harold Koh — current Sterling Professor of International Law at Yale Law School and former Legal Adviser to U.S. Department of State from 2009 to 2013 — and Todd Buchwald — U.S. Department of State Assistant Legal Adviser for United Nations Affairs — have unimpeachable credentials as boosters of the International Criminal Court: The pair led the U.S. delegation to the 2010 ICC Review Conference in Kampala and in a recent jointly authored article in the American Journal of International Law proudly describe themselves as “two lawyers…who worked many hours on the United States’ reengagement with the ICC during the Obama administration.”

Yet, despite this devotion, Koh and Buchwald’s lengthy, sobering essay suggests that amendments to the Rome Statue adopted at the Kampala conference — and set to go into effect January 1, 2017 — might very well create an environment wherein genocidal killers are able to operate with more, not less, impunity:

A few weeks back we noted Kenyan “human rights activist” Ken Wafula dramatically recanted his support of the International Criminal Court’s pursuit of Kenyan President Uhuru Kenyatta and Deputy President William Ruto after he was presented with evidence detailing “bogus and planted” witnesses marring the case.

How does she justify this? According to her filing in the court’s registry,

“For present purposes…it suffices to submit that the circumstances surrounding the witnesses’ recantation of their prior statements are such that they cannot, at this stage, provide a sufficient basis to conclude that the [statements] are incapable of belief.”

Thus, even if recanted and procured under questionable circumstances, testimony is valid so long as Bensouda says it is? Convenient! So much for impunity!

Here, in an hard-hitting op-ed for Lawfare Tyranny, is how Evans Monari — a highly respected senior litigation attorney in who argued successfully before the ICC in 2011 — described the shifting justifications of the Court in its case against Ruto and Joshua Sang:

If you’ve ventured out into the social media deluge over the last few days chances are you’ve seen your environmental activism-inclined friends and acquaintances post one of many articles with screaming headlines like…

If you’ve been waiting to finally see Monsanto — one of the most hated companies in the world — to pay for its ecocide, knowing harm of human life, and devastation of our pollinators, then you won’t have to wait much longer. Several activist groups joined by food and farming experts are suing Monsanto for their crimes against humanity…

The court, in The Hague, Netherlands, will use the UN’s ‘Guiding Principles on Business and Human Rights’ developed in 2011 to assess damages for Monsanto’s acts against human life and the environment…

This International Criminal Court, established in 2002 in The Hague, has determined that prosecuting ecocide as a criminal offense is the only way to guarantee the rights of humans to a healthy environment and the right of nature to be protected…

The proceedings will take place on World Food Day, October 16, 2016.

A certain set of individuals got themselves extraordinarily excited over this.

Alas, as Forbes‘ Kavin Senapathy gleefully pointed out, the whole story is a rubbish pile of activist PR and deceptive advertising:

“There is a lot of misunderstanding about how the court works …especially in the face of the propaganda that is being made against the court. Because people are deliberately misinforming about the ICC, politicizing the court.”

A couple weeks ago we notedThe Washington Times had launched its Ronald Reagan Thought Leadership Series at the Reagan Presidential Library in Simi Valley, California with an event entitled “The Hollow Hope of the International Criminal Court — A Look at Its Record” featuring UC Berkeley law professor John Yoo, Bush II Assistant Secretary of State for International Organization Affairs Brian Hook, and Syracuse University School of Law professor Tara Helfman.

Now video has surfaced of this hour-plus evisceration of ICC hubris and self-aggrandizement. Check it out below…

A scholar at the Institute for Justice and Reconciliation who a few months back declared the International Criminal Court an “important institution” that should be given enough power to cause “a rupture in global power arrangements” — a wildly overoptimistic degree of faith and trust the institution most certainly has not earned — now appears concerned over the persistently politicized culture around the co-called “international justice architecture.”

Specifically, Kelly-Jo Bluen takes issue with the way the ICC power-brokers during the recent Assembly of State Parties session at the Hague brushed aside African complaints over the “inequality of the global system including the UN Security Council’s referral of situations to the ICC while three of the permanent five are not ICC members, and the lack of prosecutions to date outside Africa.”

It had long been rumored that Namibian President Hage Geingob’s ultimately un-delivered speech to the African Union summit in South Africa last July included a stinging rebuke of the International Criminal Court.

Here are the widely reported relevant leaked lines:

Some people are saying we are the ones who created the ICC. However, when one creates something to be an asset but later on it becomes an abomination, you have the right to quit it since it has ceased serving its intended purpose….No institution or country can dictate to Africans, who and by whom they should be governed.

Now the nation’s information minister Tjekero Tweya has announced Geingob’s cabinet plans to make good on that warning, accepting a recommendation by the ruling Swapo Party to withdraw Namibia from the ICC — thorny “technical issues” of exiting the Rome Statute, which Namibia signed in 2002, notwithstanding.

The ICC’s earliest supporters, it appears, grow weary of being its only targets.

Here’s the story: A Kenyan delegation hoping to lobby other ICC member states at the London Assembly of State Parties Session in its quest to reform Hague practices has drawn the ire of the aspiring transnational behemoth.

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